Dismissed

Nimai Mahato v. Jagarnath Mahato

Jharkhand HC10 Nov 2022C.M.P./493/2022

Case brief

AI extract

What is this about?

This court disposed of a petition seeking stay of execution proceedings. The court observed that Order 22 provisions on abatement do not apply in execution, allowing legal representatives to come on record later. Findings no infirmity in the lower court's rejection of the stay and directed disposal of the arising appeal.

What did the court decide?

The civil miscellaneous petition is disposed of. The lower court is directed to dispose of the appeal within three months.

Nimai Mahato Vs Jagarnath Mahato — Execution and Attachment | Jharkhand HC (2022)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 493 of 2022

¶2

------

¶3

Nimai Mahato .... .... …. Petitioner Versus

¶4

Jagarnath Mahato

¶5

Agnu Mahto

¶6

Sonkar Mahato

¶7

Sanjay Mahto

¶8

Shanti Devi

¶9

Kanti Devi

¶10

Tetwa Devi

¶11

Anita Devi

¶12

Bhushan Mahto

¶13

Harakhlal Mahto

¶14

Purni Mahtain

¶15

Parwa Mahtain

¶16

Pobia Mahtain

¶17

Durgi Mahato

¶18

Kalawati Mahtain

¶19

Chhutki Mahatain

¶20

Urmila Mahtain

¶21

Indranath Mandal

¶22

Chandi Mandal

¶23

Deepak Mandal

¶24

Kailash Mandal

¶25

Amulya Mandal

¶26

Mantu Mandal 24. Bhogi Sen 25. Dukhan Sen @ Dukhu Sen 26. Satish Sen 27. Bharat Mandal 28. Ashiruddian Mian 29. Rafique Ansari 30. Safizuddin Ansari 31. Maniruddin Ansari 32. Gayasuddin Ansari 33. Phulbiya Devi 34. Jaideo Prasad Saw 35. Bhudeo Prasad 36. Smt. Funnu Devi 37. Smt. Champa Devi 38. Smt. Jamuna Devi 39. Guhi Ram Sen 40. Ghanshyam Mahato 41. Ashok Mahato 42. Nemlal Mahato 43. Suresh Mahato 44. Sanju Mahato 45. Subhadra Devi .... .... .... Opposite Parties

¶27

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

¶28

For the Petitioner : Mr. Lukesh Kumar, Advocate

For the Opp. Party :

Oral Order

03/ Dated : 10.11.2022

¶33

Surviving defects are ignored.

¶34

The instant civil miscellaneous petition has been filed by one Nimai Mahato for quashing the order dated 16.06.2022 passed in Civil Appeal No.152 of 2019 whereby and whereunder the petition under Order XLI Rule 5 of the C.P.C. for stay of Execution Case No.99 of 2019, has been rejected by learned Additional District & Sessions Judge, XVI, Dhanbad.

¶35

The principal ground for seeking stay of the execution proceeding is that judgment debtor Nos.2, 8, 14, 17, 18, 19 & 21 have since died, who have been substituted before preparation of the final decree. Secondly, the Pleader Commissioner made a spot verification in August, 2018 when the parties were not there. The report of the Pleader Commissioner was challenged before this Court in W.P.(C) No.2684 of 2019 wherein it was held that since it was a final decree, same can be challenged under Section 96 of the C.P.C. In pursuance to the order passed in the writ petition, Civil Appeal No.152 of 2019 has been filed.

¶36

The learned Court below in the impugned order has noted that the judgment debtors referred to above, have been substituted in the Execution Case No.99 of 2019 by order dated 28.03.2022. The appellant had not preferred any appeal against the preliminary decree and after passing of the decree, execution case has been filed by the decree holder.

¶37

Under the circumstance, the petition filed for stay under Order XLI Rule 5 has been rejected by the learned Court below.

¶38

There is a specific mandate under Order 22 Rule 12 that the provisions under Rules 3, 4 and 8 of Order 22 do not apply to execution proceeding. The Rules 3 and 4 relate to the death of a party pending a suit or appeal, and Rule 8, relate to the insolvency of the plaintiff pending a suit and the insolvency of an appellant pending an appeal. Thus, where a party to an execution proceeding dies during its pendency, provisions as to abetment do not apply. If after the filing of an execution petition in time, the decree holder dies and his legal representative do not come on record, or the judgment debtor dies and his legal representatives is not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in

¶39

¶40

the eye of law is that execution petition remains pending on the file of the Execution Court. If it remains pending and if no limit is prescribed to bring the legal representatives on record in such proceeding it is open to his legal representatives to come on record at any time.

¶41

As far as the stay of execution proceeding is concerned, it has been held in 2020 (1) JLJR 240 Jhar.; Sr. Prasanna Vs. Arvind Kumar by this Court that order under Rule 5 is required to be passed if the substantial loss may result to the party applying for stay of execution. It means and includes that even by obtaining restitution the appellant, if he were to succeed in the appeal, will not be restored to the full benefits of the decree which may ultimately be passed in his favour, but not the mere temporary deprivation of the use of benefits he would have and if the decree holder is not permitted to execute a decree which he has the right to execute, unless the Court has reason to believe that restitution wholly or partly cannot be had from the party seeking stay orders.

¶42

I do not find any infirmity in the impugned order.

¶43

The learned Court below, is however, directed to dispose of the appeal within three months of this order.

¶44

This civil miscellaneous petition is disposed of.

¶45

Anit

Nimai Mahato v. Jagarnath Mahato

Case brief

What is this about?

What did the court decide?

Nimai Mahato v. Jagarnath Mahato

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajeev Kumar Jha Vs Soni Devi

Rajesh Kumar Gupta Vs MD Salim Ansari

Supriya Saha Alias Supriya Sah Vs State of Jharkhand

Ms Sri Bhagwan Das Laxmi Narayan through Its Proprietor Sri Suresh Kumar Goyal Vs Smt Kiran Agarwal

Ms Bhawesh Commotrade Pvt. Ltd. Represented through Sri Triloki Singh Vs Rabindra Nath Paul

Ful Mohammad Alias Ful Mohamd Ansari Alias Ful Mohamad Ansari Vs Leyakat Mian